INTRODUCTION

The first transferable quotas were arguably developed in the
herring fishery of Iceland in 1979, when vessel catch quotas were made
transferable at the initiative of the
fishermen.[34] Another early quota system was
that of Lake Winnipeg in the Manitoba Province of
Canada;[35] but these quotas were not
transferable, a defect which was only addressed by legislative intervention in
1985-86.

By the early nineties, several countries had already
legislated various forms of property rights in fisheries, notably Australia, New
Zealand and Japan. Since then, the last decade has seen an increase worldwide in
the adoption of many and varied forms of exclusive use property rights systems.
Today, besides an expanding acceptance and appreciation of the close interaction
between the sustainable use of natural resources and the security of property
rights connected with them, there is also an increased interest in the different
types of property rights regimes e.g., state, private or common property. This
is due to awareness that no single model can effectively promote the sustainable
use of natural resources, but rather, that a well-designed regime must be
developed in consonance with the specific ecological and social contexts in
which it is to operate.

This Part examines fisheries legislation of various countries
that have introduced a form of property right in some or all of their fisheries.
Two countries are studied in detail: New Zealand, which has undertaken a
comprehensive implementation of ITQs by detailed legislation; and the federated
nation Australia, both the Commonwealth and the states, which between them
demonstrate a wide range of property rights legislative regimes. These
jurisdictions are examined from the viewpoint of the presence and strength of
the various characteristics of property rights, and other property rights
features appearing in the legislative scheme are also noted. Various other
countries that have taken or are taking steps towards implementing fisheries
property rights are examined in somewhat lesser detail.

NEW ZEALAND

Introduction

New Zealand comprises two principal adjoining islands, with a
significant area of fisheries waters of marine habitats ranging from South-West
Pacific tropical to sub-Antarctic. Fishing has traditionally played an important
part in the culture of the indigenous Maori; this way of life has been taken up
by the immigrant colonising population, with the result that fishing and hence
fisheries management have high significance to the whole nation.

New Zealand is a unitary state, with a unicameral
Westminster-style legislature. It has no entrenched written Constitution or Bill
of Rights. New Zealand acquired the common law system of England, and although
the New Zealand Court of Appeal is effectively the final appellate court in most
circumstances, appeals in certain situations are still taken to the Privy
Council, and decisions of the higher courts of the United Kingdom on matters of
English law are still highly persuasive. New Zealand was a conquered colony, and
a Treaty was drawn up with the indigenous Polynesian Maoris that has guaranteed
them a significant measure of recognition of traditional fishing
rights.

New Zealand has pursued a strong policy of property rights
implementation and development for more than a decade, with the introduction of
ITQs. All commercial fishing in New Zealand waters must take place under a
permit. Additionally, quota management stock (stock of a declared quota
management system) may only be taken under annual catch entitlement that is
generated by allocation of individual transferable quota. A comprehensive quota
scheme is established directly by legislation. Permits to fish quota management
stocks are not issued unless the applicant holds an individual catch entitlement
for that stock.

New Zealand first commenced operations of a statutory system
of fishing rights by 1986 amendments to the Fisheries Act 1983. Under
this system, quotas were allocated under a declared total allowable catch for a
fishery, by a staged process via provisional allocations, and were capable of
permanent transfer or lease for a specified period or specified tonnage of fish.
The quotas were subject to both minimum and maximum holding levels. No purchaser
or lessee could harvest unless he achieved the minimum holding before
commencement of fishing; and no one person could hold more than a prescribed
maximum of quota, but this could be varied following consultation. The
legislation provided for the taking of surplus to a maximum of 10 percent, and a
carry-over of a corresponding reduction in the following year; and similarly, a
carry-over of up to 10 percent shortfall in catch to the following year. Any
reduction in TAC was either accompanied by proportionate reduction in quota, in
which case compensation was payable for the fair market value of the quota; or
by Crown purchase or lease, and retention, of quota. Annual resource rentals
were payable for quota.

The Act was amended several times over successive years, as
the quota system established itself in New Zealand and virtually all of New
Zealands commercial fisheries were brought under the system. Significant
related legislation was enacted after 1986, notably the MaoriFisheries Act 1989, the Resource Management Act 1991, and the
Treaty of Waitangi Fisheries Claim Settlement Act 1992, which allocated
quota to Maori commercial fishing interests to comply with the Treaty of
Waitangi, and regulated non-commercial interests. There is no cap on customary
harvest, and allowance is made in the annual TAC for estimated customary
removals. The scheme under the Act also became more detailed, with the
introduction of further transitional concepts of quota types, further provision
for Crown acquisition of quota, and greater attention paid to the concept of
"total allowable commercial catch", which was the balance of total allowable
catch after other fishing interests, notably recreational and customary Maori
fishing interests, were taken into account. Provisions for compensation for
reduction in quota, minimum holding provisions and restrictions on holdings, and
procedures on taking fish in excess of quota and carrying forward of unused
quota, also became more detailed.

Meanwhile, a 5-year review process, begun in 1991, eventually
resulted in a new FisheriesAct 1996, to replace all previous
Acts, although subordinate legislation under the former Acts is continued unless
amended or replaced. However, the 1996 Act has only partially been commenced, so
that much of the 1983 Act is still in force, and is still being amended even
after 1996.

The 1996 Act itself in Part XVII contains detailed repeal,
amendment and savings provisions that effect much of this partial replacement.
However, these repealing provisions are themselves only being commenced in
stages. At the time of writing, the quota management system is operating under a
complex combination of the provisions of the 1996 Act and the 1983 Act plus
amendments, but the situation is continually changing. When the 1983 Act is
fully repealed, or at least when the repeal of the Fisheries Amendment
Act 1986, which established the quota system, is fully effective, the system
will be operated entirely under the 1996 Act.

Meanwhile, section 322 provides that in the case of
inconsistency between the two Acts, those parts of the 1996 Act that are in
force shall prevail.

The 1983 Act

The 1986 amendments to this Act first introduced quotas as a
specific statutory creation, in a new Part IIA. The scheme as first introduced
contained provisions to enable the declaration of fisheries to be subject to
quota fishing; a declaration of total allowable catch; and the issue of
provisional rights for quota management areas. The original 1986 allocation
process provided that the Minister was to buy back and subsequently cancel
quota, so as to equate the final total with TAC. Once equilibrium was reached,
the final quotas were issued, as perpetual and transferable rights. The
Director-General was to have regard, in any particular case, to any unfairness
in the light of "the commitment to, and dependence on, the taking of fish of
that species... by the person..." (sec. 28(3)). This scheme was amended and
eventually repealed by the commencement of the relevant provision of the 1996
Act.

Much detail was provided in the 1986 amendments as to maximum
and minimum quota holdings, and other holding restrictions (such as New Zealand
residence), which had the effect of limiting the free transferability of quota.
It was these details that were the principal subject of later amendments to the
1983 Act, as the nature of the managed fisheries was tailored to suit changing
circumstances in the fishing industry.

The 1983 Act provides that where the TAC for a fishery was
reduced for management purposes, quota held by the Crown was to be cancelled
(sec. 28U), or quotas are reduced proportionately, and compensation is payable
by the Crown for their fair market value, which may go to arbitration for
determination if agreement cannot be reached on the value (Sections 28B - 28D,
still in force).

Another provision of the 1983 Act still in force is section
107C, relating to forfeitures for fisheries offences. Section 107C(1)
reads:

"Where any property,
fish, proceeds, quota, or interest in quota (hereafter in this section all
referred to as property) is forfeit or ordered to be forfeit to the Crown under
section 107B of this Act, the Minister may, subject to the provisions of this
section, dispose of that property as the Minister thinks fit. "

The 1996 Act states in its long title that it is intended to
reform and restate the law relating to fisheries resources - it also takes
features from other legislation into account. A considerable amount of this
restatement is evident, but so also is a considerably more detailed scheme for
the management of quota. The entire thrust of the Act is stated to be "to
provide for the utilisation of fisheries resources while ensuring
sustainability" (sec. 8). Environmental principles (sec. 9), and "information
principles", effectively a restatement of the precautionary principle, (sec.
10), are also to be taken into account in the exercise of powers, functions and
duties under the Act.

Description of rights

Limited access fishing rights are described as "quota", which
in the 1996 Act means individual transferable quota and provisional individual
transferable quota, and in some cases also refers to annual catch entitlement,
or provisional catch history.

Although the management scheme is set out in great detail,
emphasis may be found throughout on the need for consultation and consideration
for the rights of quota owners (see for example the consultation and agreement
process which must be undertaken and the attention to the possible grievances of
quota owners in section 25, when quota management areas are to be
altered.)

Section 27 sets out the nature of individual transferable
quota, as follows:

"(a) It is to be
allocated in perpetuity in a manner permitted by this Act:

(b) It perpetually generates a right to receive an annual
catch entitlement for that stock in the applicable quota management
area:

(c) It is to be expressed as quota shares, and each quota
share represents an equal proportion of the total allowable commercial catch for
the stock:

(d) It may be traded in any manner permitted by this
Act:

(e) It may be secured in any manner permitted by this
Act:

(f) It may be caveated in any manner permitted by this
Act:

(g) Each person's holding is liable to be increased or
decreased as a consequence of appeals against provisional catch history or the
transfer of quota by the Crown under section 22 or section 23 or section 52 of
this Act:

(h) It is liable to be forfeit for contravention of
aggregation limits or foreign ownership constraints, or on conviction for any
offence referred to in section 255 (4) of this Act:

(i) It may be cancelled and reallocated to give effect to an
alteration to quota management areas:

(j) In the case of quota for squid, the quota may be subject
to a method restriction."

Quota is expressed as a number of shares for each fishstock.
The total for each stock is 100,000,000 shares, and the value of 1 share is
therefore equal to one hundred-millionth of the total allowable commercial catch
for the stock (sec. 42).

Provisional ITQ is generally the same creature (sec.
28), except that it is interim only and may only be transferred by operation of
law.

A person who was entitled to quota under the 1983 Act acquires
a preferential allocation right for the amount of quota not allocated when his
provisional maximum ITQ was converted to ITQ. This right is personal,
non-transferable and must have been held continuously to have effect under the
1996 Act when allocations are made based on preferential allocation
rights.

Provisional catch history is the mechanism by which
quota is allocated (sec. 30), and does not of itself confer any entitlement to
take fish. It is a persons catch history based on individual catch
entitlement over a specified period depending on the fishery in question, and is
a contingent right that comes into existence upon allocation by the chief
executive or by virtue of a decision of the Catch History Review Committee or
any court in accordance with the Act (sec. 29). It may be transferred to any
other eligible person and thereby becomes added to that persons catch
history.

By section 65, annual catch entitlement has the
following characteristics:

(a) It is generated
from quota and relates only to the stock and quota management area in respect of
that quota:

(b) It may, when a total allowable catch is increased during a
fishing year... be created by the Minister...

(c) It is to be allocated in a manner permitted by the
Act:

(d) It is to be expressed in kilograms and expressed as
applying to a particular fishing year:

(e) It confers upon the commercial fisher an entitlement to
harvest a quantity of fish, aquatic life, or seaweed of the stock taken under
the authority of that annual catch entitlement, and in accordance with a fishing
permit and any conditions and limitations imposed by or under the Act

(f) It may be used to satisfy or remit deemed value amounts
under section 76 ...

(g) It may be transferred to the chief executive as a bycatch
trade-off in satisfaction of a deemed value amount under section 78
...

(h) It may be traded in any manner permitted by the
Act:

(i) It may be caveated in any manner permitted by this
Act:

(j) It is liable to be forfeit if owned by an overseas
person:

(k) In the case of an annual catch entitlement for squid, it
may be subject to a method restriction.

Quota generates annual catch entitlement on the first day of
each fishing year (sec. 66), and is allocated by a formula process set out in
section 67. In addition to the general offence of taking fish without a permit
under section 89, it is also an offence under section 69 to take fish etc.
subject to a quota management system without the appropriate annual catch
entitlement to take the fish.

Establishment and allocation of rights

The Minister from time to time declares a fish stock (a quota
management stock) to be subject to a quota management system (sec. 18). Stocks
already subject to quota management under the 1983 Act automatically become
quota management stocks under the 1996 Act. This declaration is accompanied by a
declaration of the quota management area of the stock, and the declared fishing
year for the stock (sec. 19). Quota management areas already declared under the
1983 Act are continued by section 24.

The Minister sets an annual total allowable catch in respect
of each quota management stock in a quota management area (sec. 13), so as to
maintain or regain maximum sustainable yield for the stock. An annual total
allowable commercial catch is then set for each quota management stock in a
quota management area, having regard to the total allowable catch and
non-commercial fishing interests (sec. 20).

Eligibility for allocation of quota is determined according to
principles set down in sections 31 ff. Eligible persons have their provisional
catch history assessed, based on and equivalent to individual catch
entitlements, and quota is allocated on this basis. Elaborate carry-over and
transitional provisions are provided for management stocks, areas and quota
allocations previously established under the 1983 Act.

Provisional catch history may be transferred within a limited
period by holders who are not eligible to receive quota (sec. 37).

Previous permit holders, holders of licences for controlled
fisheries under the 1983 Act, and persons having provisional catch history,
whether acquired by allocation or transfer, recorded in their names in the Quota
Register, are entitled to quota allocation (sec. 45). Unallocated quota shares
are allocated to the Crown (sec. 49). The chief executive may also purchase and
transfer quota in the name of the Crown (sec. 50).

Decisions regarding individual catch entitlements,
eligibility, allocations of provisional catch history and disputes regarding the
transfer of provisional catch history, may be made by an interested person or
the chief executive to the Catch History Review Committee (sec. 51).
Declarations may also be sought from the High Court regarding determinations as
to eligibility on citizenship or residence basis (sec. 58).

Security of rights

The 1986 amendments created a register of ITQs. The 1996 Act
extended details pertaining to registration, with what appears as a deliberate
effort to create a virtually indefeasible title to ITQ. Detailed registration
provisions allow for transferability and the registration of third-party
interests, for both quota and annual catch entitlements.

A Quota Register and separate Annual Catch Entitlement
Registers for each fishing year shall be kept (sec. 124). The Quota Register
shows, for each stock TAC, TACC, ITQ allocations, registered transfers of ITQ
and provisional ITQ, provisional catch history allocations and transfers,
caveats and mortgages over quota shares (sec. 127). Annual Catch Entitlement
Registers show generation or creation, holdings and transfers of annual catch
entitlement, and statutory caveats (sec. 128). No transaction is effective until
registered (sec. 155). A person claiming to be entitled by operation of law to
be registered as the owner, mortgagee, or caveator of quota shares, or the owner
or caveator of annual catch entitlement, may have that interest registered in
accordance with the Act (sec. 161).

Annual catch entitlement, provisional catch history and
provisional ITQ can be similarly registered, but there is no similar conclusive
guarantee as to title in these instances.

Section 168 specifically guarantees "ownership rights", as
follows:

"(1) The production
of a certified copy in hard copy form signed by or on behalf of the Registrar or
a Deputy Registrar, and sealed with the Registrar's seal, of a record in any
register kept under this Part of this Act as to the ownership of any individual
transferable quota, shall be held in every court of law or equity and for all
purposes to be conclusive proof that the owner shown in the certified copy was,
as at the time of the issue of the certified copy, owner of the quota to which
the certified copy relates."

The Quota Register under the 1996 Act therefore operates
similarly to a land title register, and a registration document relating to
ownership, mortgagee or caveator rights of ITQ is conclusive proof, subject to
provisos regarding registration through fraud. However, the interests of
registered bona fide purchasers or mortgagees for value are protected,
even where their interests are registered through fraud, error or void or
voidable instruments.

Transferability of rights

ITQ is transferable by way of share transfer (secs. 27 and
132). Annual catch entitlements are similarly transferable (secs. 65 and 133).
However, dealings in quota, annual catch entitlement and provisional catch
history are only effective if performed in accordance with the Act (sec. 135).
Quota shares may be mortgaged in accordance with the Act (sec. 136), but annual
catch entitlement may not be (sec. 137). Sections 139 ff. provide some statutory
limitations on mortgages and the rights of mortgagees. Caveats may be registered
over quota shares or annual catch entitlement (secs. 147 ff).

Transfer of provisional catch history, quota, or annual catch
entitlement cannot be made to overseas persons except in very limited
circumstances (secs. 56-58). Aggregation of quota shares beyond set limits by
any one person, or even by a person together with persons associated with him,
is not permitted except under limited circumstances (secs. 59 and 60), and
excess quota is forfeit unless the High Court declares otherwise (sec. 61). Used
annual catch entitlement cannot be transferred (sec. 73).

Transferability has always been possible, even under the 1986
amendments, although it has been subjected to various limitations such as
maximum and minimum holdings, which have been altered over the years. Under the
1996 Act, the transferability of quota is almost completely unlimited - the only
limits imposed are those of registration requirements and anti-monopoly and
foreign ownership safeguards. The transfer of annual catch entitlement and
provisional catch history is a little more limited but nonetheless possible.
This ease of transfer lies at the heart of the entire quota system - it is
transferability which renders quota such a valuable commodity, and the value
realised on transfer which encourages trade, surrender of fishing rights and
ultimately a reduction in competitive overfishing.

Permanence of rights

The permanent nature of the New Zealand ITQ is set out clearly
in the 1996 Act, which specifies that ITQ is "allocated in perpetuity", and
"perpetually generates a right to receive an annual catch entitlement". The
quantum of this entitlement is however dependent on the current TACC.

The TACC set under section 20 may be varied or reduced,
including reduction to zero (sec. 20). If the TACC is reduced and the Crown
holds any unencumbered quota shares, they may be distributed amongst quota
holders according to a set formula (sec. 22). Similarly, if a TACC is increased
and an eligible person holds preferential allocation rights for the stock, the
Crown may deduct from every person "owning" quota for that stock a set number of
quota shares and transfer them to the eligible person, thereby creating a new
ITQ holder (sec. 23).

All commercial fishing, including quota management stock
fishing, must be carried out under a valid fishing permit (sec. 89). A person
may hold only one fishing permit, and it is non-transferable. Where a fishing
permit is cancelled, any individual catch entitlement under the permit does not
entitle the holder to any allocation of quota (sec. 96).

Shareholdings may be reduced or varied so as to compensate for
new entrants following an increase in TACC (sec. 23) or where provisional catch
history is adjusted following an appeal (sec. 52). Share registration is
adjusted accordingly (sec. 153). Mortgaged or caveated holdings may be similarly
adjusted where necessary (sec. 153), or where there has been an adjustment in
quota holding following an alteration in quota management area (sec. 154). Any
transfer of quota or annual catch entitlement performed by the chief executive
under the Act is not prevented by the existence of a mortgage or caveat, but the
Registrar may alter the mortgage or caveat accordingly (sec. 163).

Section 168 is entitled "Guarantee of Ownership Rights", and
its effect is to make the registration record of ownership of ITQ (but not
provisional ITQ, annual catch entitlement or provisional catch history)
conclusive proof of ownership, subject to the usual qualifications of obtaining
by fraud, or deriving otherwise than as a bona fide purchaser for
value.

Quota shares may be forfeited to the Crown for certain
offences, in the same way as fish catch, fishing vessels and other property
(sec. 255).

Proportionality

Since inception, the New Zealand ITQ has been subject to
proportional distribution. The 1986 amendments clearly set out the
Ministers power to reduce a TAC for a quota management area, and unless
the reduction is taken up by the cancellation of ITQ held by the Crown, the
permissible take under related ITQs is reduced "on a proportionate basis". The
proportionality principle was further developed in 1990 amendments. The 1996 Act
continues the principle, with detailed provisions for adjustments, both for
decrease and increase in TACC, based on provisional catch history, preferential
allocation rights, and the use of Crown holdings of quota shares to achieve the
balance of distribution. Quota shares are expressed in kilograms of catch and
the precise formulae of redistribution are set out in the Act itself.

Other matters

The Minister may set and vary a deemed value rate for any
quota management stock, at a level designed to ensure that there is an incentive
for commercial fishers to acquire annual catch entitlement to balance against
catch, rather than risking the penalties of illegal fishing (sec. 75). The
deemed value is paid by or to each fisher after actual catch history is balanced
against annual catch entitlement (sec. 76).

Under the 1983 Act, individual transferable quota is described
as enabling the holder or lessee of the rights, "to take in total within the
quota management area concerned in any year fish of the species or class shown
in the quota up to the tonnage shown in the quota" - it is an enabling right.
The language of the 1996 Act speaks of an ITQ "generating a right" to take
fish.

Noteworthy too is section 255 of the 1996 Act, which provides
for forfeiture of fish, proceeds of the sale of fish, and property used in the
commission of the offence which gives rise to the forfeiture. Property for these
purposes includes quota, and includes even quota held by persons associated with
the offender.

Conclusions

From the outset, it is apparent that New Zealand has embraced
the concept of securing sustainable fisheries development through the use of
ITQs, and the legislation and administrative machinery for this were designed
accordingly. From the inception of the system in 1986, the governing legislation
has contained detailed provisions for the creation and protection of ITQs.
Adjustments and improvements to the legislative scheme have been ongoing, and
reveal that the policy intention is and always has been to create a legal entity
which is as close as possible to "property", in the sense that property is not a
thing but a bundle of rights vested in one or more persons, in relation to the
thing. The New Zealand legislation has catered for the most significant rights
of this bundle.

New Zealand is able to establish this strong property system
because of its exceptional characteristics as an isolated island nation with a
unitary jurisdiction[38]. Fisheries management
is completely centralised in New Zealand, with the Ministry of Fisheries
administering the Acts, drawing up management plans, preparing allocation plans
etc. Most of New Zealands commercial fisheries are now managed under an
ITQ system, and further extensions are planned. Its fisheries legislation
appears directed towards a creation that is intended to be viewed as property.
The original system established by the 1986 amendments to the 1983 Act has
certainly been viewed as such by the New Zealand
courts[39].

The wording of the 1996 Act now appears to put the matter
beyond doubt. It uses full property rights language for ITQs, particularly at
section 27 which describes the "nature" of quota, and section 168, which
establishes an indefeasible title similar to that of the Torrens system of land
registration. These rights are permanent, transferable, divisible and subject to
the rights of third parties whose interests may be registered.

However, there are still some constraints on what might
otherwise be termed full ownership in property. Transferability is subject to
some statutory bars. Proportionality reduction in shareholding for management
purposes does not give rise to compensation. The rights granted are in the
fishing, not in the fish themselves, which remain owned, so far as such animals
ferae naturae can be owned, by the state. Some aspects of the "bundle of
rights" remain with the state, namely the rights of protection and of
management, and the most important aspect of all: the right to create, and
correspondingly to extinguish, by legislation.

AUSTRALIA

Introduction

Australia, the island continent, has one of the largest EEZs
in the world. Partly due to its history as a series of settled colonies of
Britain, however, less attention has been paid in the past to fisheries
production than to that of pastoral and agricultural settlement and development.
The rights of the indigenous inhabitants to their traditional dwelling, hunting
and fishing grounds has only recently been acknowledged in law, and the process
of delimiting these rights, by court decision and legislation, is still in
progress.

The Commonwealth of Australia comprises a federation of six
states (New South Wales, Queensland, Victoria, South Australia, Western
Australia and Tasmania) and a number of internal and external Territories, the
only relevant one of which is the Northern
Territory.[40] Each state is a separate
jurisdiction, with its own legislative, executive and judicial system, and its
own Constitution (the Northern Territory is governed by a Commonwealth Act). The
Commonwealth Constitution sets out the special powers reserved to the
Commonwealth, with the states exercising the residue of powers. Where there is
an inconsistency between State and Commonwealth legislation in respect of a
field reserved to the Commonwealth, the Commonwealth legislation
prevails.

The English common law was received into all jurisdictions in
Australia.[41] Each one has now developed its
own jurisprudence, but all are interconnected, and decisions from each one are
highly persuasive throughout the country. Appeals formerly went ultimately to
the Privy Council of England, although this process has now been abolished, and
the High Court of Australia is now the ultimate appellate court.

Fisheries management in Australia has moved from the first
limited entry fisheries of the 1960s through attempts to rationalise the
industry by means of unitising vessel inputs and introducing buy-back and
rationalisation schemes, to a partial implementation of property rights in many
fisheries. However, more than half of Australian fisheries are still managed
under restricted licence effort.[42]

The Commonwealth Constitution in section 51(x) vests power in
the Commonwealth to make laws with respect to:

"(x) Fisheries in
Australian waters beyond Territorial Limits."

The Commonwealth Seas and Submerged Lands Act 1973
specifically declares that sovereignty over the 12 nautical mile territorial sea
(including the airspace over it and the seabed beneath it), the contiguous zone
and the continental shelf, is exercisable by the Commonwealth. The High Court in
New South Wales v The Commonwealth (1976) 135 CLR 337 confirmed that
state territory was bounded by the low-water mark, and Commonwealth fisheries
jurisdiction extended to fish in the territorial sea and on the continental
shelf.

Following the Offshore Constitutional Settlement of 1979, a
series of complementary state and Commonwealth Acts and agreements have
apportioned jurisdiction over and responsibility for maritime areas and
activities between the Commonwealth and the states.

The Commonwealth Coastal Waters (State Powers) Act 1980
and the Coastal Waters (Northern Territory Powers) Act 1980 declare that
state coastal waters do not extend beyond 3 nautical miles from the baselines,
and provide as follows:

5. The legislative
powers exercisable from time to time under the constitution of each State extend
to the making of:

(a) all such
laws of the State as could be made by virtue of those powers if the coastal
waters of the State, as extending from time to time, were within the limits of
the State, including laws applying in or in relation to the sea-bed and subsoil
beneath, and the airspace above, the coastal waters of the State;...

(c) laws of the State with respect to fisheries in Australian
waters beyond the outer limits of the coastal waters of the State, being laws
applying to or in relation to those fisheries only to the extent to which those
fisheries are, under an arrangement to which the Commonwealth and the State are
parties, to be managed in accordance with the laws of the
State.[44]

This provision does not derogate from Commonwealth sovereignty
over the 3-mile zone of the territorial sea, but simply bestows upon states the
ability to legislate within those waters. States may also legislate with respect
to fisheries beyond the three-mile zone, but only by agreement with the
Commonwealth.

The Commonwealth Fisheries Management Act1991
provides at section 5:

(1) For the purposes
of this Act, the coastal waters of a State or internal Territory are:

(a) the part
or parts of the territorial sea of Australia that are:

(i) within 3
nautical miles of the baseline by reference to which the territorial limits of
Australia are defined for the purposes of international law; and

(ii) adjacent to that State or Territory; and

(b) any marine or tidal waters that are on the landward side
of that baseline and are adjacent to that State or Territory but are not within
the limits of a State or Territory.

This is paralleled in state fisheries legislation by such
means as defining "coastal waters" in the legislation to have the same meaning
as in the Fisheries Management Act 1991.

Part 5 of the Commonwealth Act provides for the management of
fisheries in cooperation with the states. By arrangement, they may be managed by
Joint Authorities, by the Commonwealth or by the relevant
state.[45] The terms of the Joint Authority
agreement specify the law, whether state or Commonwealth, which is to apply in
the management of the fishery. A fishery within the three-mile zone may be
managed under Commonwealth law; or a fishery beyond the three-mile limit may be
managed under appropriate state law. Again, appropriate provisions of state
legislation complement the Commonwealth Act.

Australian Fisheries
Legislation

The consequence of this system is a multiplicity of fisheries
management Acts, Regulations, Management Plans and other subordinate legislation
governing fishing in Australian waters. There is no requirement of compatibility
between state and Commonwealth laws. All states and the Commonwealth have their
own fisheries management Authorities and governing legislative regimes, which,
although showing common trends, in some respects show marked differences in
their features. Each of these eight regimes will therefore be examined
separately.

Commonwealth

The first restricted entry Commonwealth-managed fishery was
created in 1963, but serious restrictions were not commenced until the
1980s.[46] At that time, fisheries under
Commonwealth jurisdiction were managed in accordance with the Commonwealth
Fisheries Act 1952.

In 1991, a new legislative regime was introduced, which
established the Australian Fisheries Management Authority (AFMA) under the
Fisheries Administration Act 1991, and the Commonwealth fisheries
management regime under the Fisheries Management Act 1991. During a
two-year transitional period, the 1952 Act remained in force to the extent
necessary to continue licences, until 1994 when its repeal was
completed.

The Fisheries Management Act 1991 set the standard for
the structure of fisheries legislation of the states, many of which enacted new
fisheries legislation in subsequent years.

Description of rights

Fishing rights under the Act are termed "statutory fishing
rights", and are defined as follows:

"21 Nature of a
statutory fishing right

(1) For the purposes of this Act, each of the following rights
is a separate statutory fishing right:

(a) a right
to take a particular quantity of fish, or to take a particular quantity of fish
of a particular species or type, from, or from a particular area in, a managed
fishery;

(b) a right to a particular proportion of the fishing capacity
that is permitted, by or under a plan of management, for, or for a part of, a
managed fishery;

(c) a right to engage in fishing in a managed fishery at a
particular time or times, on a particular number of days, during a particular
number of weeks or months, or in accordance with any combination of the above,
during a particular period or periods;

(d) a right to use a boat in a managed fishery for purposes
stated in a plan of management;

(e) a right to use particular fishing equipment in a managed
fishery;

(f) a right to use, in a managed fishery, fishing equipment
that is of a particular kind, of a particular size or of a particular quantity
or is a combination of any of the above;

(g) a right to use a particular type of boat in a managed
fishery;

(h) a right to use a boat of a particular size or having a
particular engine power, or of a particular size and having a particular engine
power, in a managed fishery;

(i) any
other right in respect of fishing in a managed fishery."

Establishment and allocation

Plans of management are determined for a fishery by AFMA (sec.
17). Plans may incorporate provisions of any Act, regulation or determination,
but the Fisheries Management Act 1991 prevails to the extent of any
inconsistency. Determinations regarding plans of management are treated as
subordinate legislation for various purposes specified in section 19.

The fishery is managed by the allocation of fishing rights of
the type specified under the plan of management. Allocation may be by tender,
auction or ballot, or by any other procedure set out in the plan of management
(secs. 24 and 25), to applicants who are registered as eligible in accordance
with the conditions for registration set out in the plan (sec. 26). Auctioned
rights go to the highest bidder; tenders or balloted rights to the person ranked
highest on the precedence list; other grants are awarded in accordance with the
procedures set out in the plan. Charges are levied in accordance with the
Statutory Fishing Rights Charge Act 1991.

A short-term permit valid for no longer than 5 years may be
issued under section 32 in respect of a specified area or a fishery that is not
yet a managed fishery.

Section 79 provides that where a fishery is managed by a Joint
Authority under the law of the Commonwealth, the Joint Authority has the same
powers as AFMA under the Act in relation to the management of the fishery,
including the powers relating to statutory fishing rights described
above.

Review of allocation of statutory fishing rights, whether made
by AFMA or a Joint Authority, is conducted on application by a dissatisfied
eligible person by the Statutory Fishing Rights Allocation Review Panel
established under Part 8 of the Act. An appeal lies from a decision of the Panel
to the Federal Court of Australia on any question of law (sec. 161).

Security of rights

Section 45 obliges AFMA to register statutory fishing rights.
The Register is prima facie evidence of any particulars registered in it (sec.
53(1)). Section 46 requires that dealings with the right must be registered, in
the following terms:

"46 Creation etc.
of interests in fishing rights

(1) This section applies to a dealing that would, but for
subsection (2), have the effect of creating, assigning, transferring,
transmitting or extinguishing an interest in a fishing right.

(2) The dealing has no effect of a kind mentioned in
subsection (1) until it is registered under this section.

47 Trusts not registrable

Notice of any kind of trust relating to a fishing right is not
receivable by AFMA and must not be registered."

Transferability of rights

The Act then goes on to provide as follows:

"48 Power of
holder of fishing right to deal with fishing right

(1) Except where a condition of a fishing right provides
otherwise, a holder of a fishing right may, subject only to any rights appearing
in the Register to be vested in another person and to section 49, deal with the
fishing right as its absolute owner and give good discharges for any
consideration for any such dealing.

(2) Subsection (1) only protects a person who deals with such
a holder as a purchaser in good faith for value and without notice of any fraud
on the part of the holder.

(3) Equities in relation to a fishing right may be enforced
against the holder of the fishing right except to the prejudice of a person
protected by subsection (2).

49 Approval of AFMA etc. to dealing required in certain
circumstances

(1) A person must not transfer the ownership of a fishing
right unless AFMA has, in writing, given its approval to the transfer.

(2) AFMA may only refuse to give an approval for the purposes
of subsection (1) if the transfer would be contrary to the requirements of the
relevant plan of management or a condition of the fishing right.

(3) A purported dealing in contravention of subsection (1) has
no effect.

51 AFMA not concerned with certain matters

AFMA is not concerned with the effect in law of any instrument
lodged under section 46 and the registration of the dealing does not give to the
instrument any effect that it would not have if this Part had not been
enacted."

These provisions permit dealings with a fishing right in a
manner comparable to dealings with other things normally accepted as property,
subject only to the proviso that the right and the interests in it are
registered in the required manner. Section 48(1) is interesting in that it
declares that the holder of a fishing right may deal with the right "as its
absolute owner"; but subsection (2) then goes on to qualify that right, and the
persons protected by the statutory declaration of "absolute ownership" of
subsection (1). Equities in relation to a fishing right may be enforced against
the holder of a fishing right except to the prejudice of a person protected by
the provisions of the section concerning holders who are purchasers for value in
good faith and without notice of fraud. Section 49 qualifies the free
transferability of rights, and provides for the circumstances in which the
approval of the Authority is required in relation to dealings referred to in
section 48. Section 51 goes further in cutting down any tendency towards a
"stand-alone" proprietary quality of rights.

Permanence of rights

AFMA may vary or revoke a condition of a SFR, or new
conditions may be added (sec. 22(5)). Under section 22(3), SFRs cease to have
effect if the plan of management under which it is granted is revoked by AFMA
under section 20(3); may cease to have effect or apply to a fishery if the joint
arrangement with the relevant state is terminated under section 75 or new
arrangements are made under section 79; or may be cancelled for breach of
condition, non-payment of fees or for infringements of fisheries laws, not only
of Australia and its States and Territories, but also of its fisheries waters
neighbours New Zealand and Papua New Guinea (secs. 38 and 39). The finite
duration of a SFR may also be specified (sec. 22(4)(b)).

The Act sets out in detail at sections 31A ff. the
consequences to fishing rights of revocation of a plan of management. Each
former right-holder thereupon holds a statutory fishing rights option (unless a
new identical plan immediately replaces the former plan, in which case former
rights-holders assume new equivalent rights) (sec. 31A(1)).

The option entitles the holder to be granted relevant rights
under a new plan which is substantially the same as the revoked plan, or at
least has some features in common (sec. 31A(4)). Sections 31B and 31C provide
detail of the classes and number of rights to which the option-holder becomes
entitled. The option however must be exercised by the option-holder giving
appropriate notice, otherwise the option lapses (sec. 31K).

A Register of Statutory Fishing Rights Options creates the
same interests in the options as are created in fishing rights under section 46
(see above) (sects. 31E ff).

No compensation is payable if a SFR is cancelled, ceases to
have effect or ceases to apply to a fishery (sec. 22(3)(e)). But section 167A(1)
provides that:

If, apart from this
section, the operation of this Act would result in the acquisition of property
from a person otherwise than on just terms, the Commonwealth is liable to pay
reasonable compensation to the person.

Section 167A goes on to provide for the Federal Court to
determine the reasonable amount of compensation in the event of
disagreement.

The Fisheries Management Act 1994 largely replaced the
former Fisheries and Oyster Farms Act 1935, although many provisions of
the latter are continued under the new legislation. For these purposes, the
latter Act is still in force. Fishing licences are retained but made
automatically renewable, with only a limited discretion in the Minister to
cancel or suspend, mainly for breaches of the Act. Prior to the establishment of
a full share-management regime, a restricted fishery regime is usually
established which allows time to determine the parameters of the final full
regime.

Description of rights

Rights under the NSW legislation appear as shares in a
fishery, and rights holders are referred to as shareholders. There is no
definition provided, as none is needed. The "share" nature of the right is
evident from the provisions of the Act related to acquisition, registration,
etc.

Establishment and allocation

Total Allowable Catch is set by a Total Allowable Catch
Setting and Review Committee (the "TAC Committee") established under the
Fisheries Management Act 1991 (sec. 26). The TAC Committee may determine any
total allowable catch, and is required to do so if a management plan or the
Minister requires it (sec. 28).

Limited access fisheries under this legislation are termed
"share management fisheries". The process of creation of a share management
fishery is set out at sections 41-62. The abalone and lobster fisheries appear
as share management fisheries in Schedule
1[48], and further share-management fisheries
may be declared by the Governor, by proclamation on the recommendation of the
Minister (sec. 44). An interim Management Advisory Committee is set up, the
criteria for allocation of shares are determined, applications from eligible
persons for shares are then invited and shares are issued provisionally until
the commencement of the management plan for the fishery, when a final issue is
made. Access to the fishery is then limited to provisional shareholders, appeals
are heard and a management plan is drafted. The Act establishes a Share
Management Fisheries Appeal Panel to hear appeals from applicants for
shares.

A management plan is made by a regulation, and the management
plan commences when the regulation commences. At this stage, the fishing,
share-transfer and other rights of shareholders are fully identified,
exercisable and subject to review. A management plan prevails over any other
regulation or fishery closure unless the regulation or closure states
otherwise.

The mere holding of a licence to fish in the fishery does not
in itself entitle the holder to fish; he must also have the appropriate
shareholding (secs. 54 and 66). His licence must also be endorsed accordingly
(sec. 68). The commercial total allowable catch for the fishery is to be
distributed wholly amongst the shareholders (sec. 78). A shareholder may
purchase a portion of another shareholders total allowable catch, but not
so as to exceed twice his allocation (sec. 79). A total allowable catch
allocation or part of it may be carried over to or borrowed from a future
allocation (sec. 80). Any excess of allocation caught must be paid for, or
shares forfeited and sold by public tender (sec. 81).

Shareholders must pay a management charge and a periodic
"community contribution" on their shares in proportion to their shareholding
(secs. 76 and 77).

Security of rights

A Share Management Fisheries Register is maintained by the
Director, in which all issues, renewals, cancellations and forfeitures of and
dealings in shares are entered (sec. 89). The Register is evidence (whether
prima facie or conclusive is not stated) of particulars entered in it (sec.
98(1)).

Transferability of rights

Licences are not transferable (sec. 135). A share in a share
management fishery may be transferred, assigned, transmitted or mortgaged and
any other interest of a kind prescribed by the regulations may be created in the
share (sec. 71). However, any such transaction must be recorded in the Share
Register, and these provisions are subject to any restriction imposed by the
management plan. Sections 91(1) and 92 provide:

"91. (1) A
transaction that purports to have the effect of transferring, assigning,
transmitting, mortgaging or otherwise creating an interest in a share in any
share management fishery does not have that effect until it is registered in the
Share Register."

The Director is not concerned with the effect in law of any
document lodged under section 91 (Registration of dealings in shares) and the
registration of the transaction concerned does not give to the document any
effect that it would not have if the Division had not been enacted (sec.
96).

Section 92 provides that no notice of any kind of trust
relating to shares is to be noticed or registered.

The holder of the appropriate shareholding in a share
management fishery may nominate a commercial fisher to take fish in the fishery
on behalf of that holder. The nomination is to be noted in the Share Register
(sec. 69).

Permanence of rights

Shares are issued initially for ten years, but may be renewed
under appropriate circumstances (sec. 73).

Shares in a share management fishery may be voluntarily
surrendered and sold by public tender, returning 85 percent to the shareholder
(sec. 74).

When a declaration is made abolishing a share management
fishery, all shares in it are cancelled. If the management plan has already been
commenced, the shareholders are entitled to compensation from the State for the
market value before the cancellation of the shares they held. The amount of
compensation payable is to be determined by agreement between the Minister and
the person entitled to compensation or if there is no agreement, it is to be
determined by the Valuer-General. A person who is dissatisfied with the amount
of compensation offered or with any delay in the payment of compensation may
appeal to the Land and Environment Court. A person entitled to compensation may
instead agree to accept shares in another share management fishery which is
replacing the omitted fishery wholly or partly (sec. 44).

Certain offences are designated as forfeiture offences by the
management plan, and shares may be forfeited by court order for those and
certain other offences (sec. 75).

"Note. At
common law, the public has a right to fish in the sea, the arms of the sea and
in the tidal reaches of all rivers and estuaries. The public has no common law
right to fish in non-tidal waters. The right to fish in those waters belongs to
the owner of the soil under those waters. However, the public may fish in
non-tidal waters if the soil under those waters is crown land. In the case of
non-tidal waters in rivers and creeks, section
38[50] declares that the public has a right to
fish despite the private ownership of the bed of the river or creek. However,
the right to fish in tidal or non-tidal waters is subject to any restriction
imposed by this Act."

The Northern Territory Fisheries Act is comparatively
simple and straightforward as regards the establishment of fishing rights. Most
matters are left to the discretion of the Minister in preparing a Management
Plan. There is however a clear direction to provide compensation for those whose
rights are extinguished.

Description of rights

The Act makes reference in Schedule 2 to the possibility of
determination of "quota" or "allowable catch" in a fishery subject to a
management plan.

Establishment and allocation

Fishing licences may be issued to a person (sec. 11), and
temporarily or permanently transferred to another person (secs. 12A and 12B).
Management Plans are prepared for declared management areas or managed fisheries
(secs. 22 and 23).

Section 27(1) provides that:

"Every provision of
an operative management plan shall have the force and effect of a regulation in
force under this Act."

Where there is no Management Plan, the Minister may make
declarations closing areas, restricting species, types etc, gear used, etc (sec.
28).

Schedule 2 sets out in detail matters to be included in a
Management Plan. The number of licences may be limited. A management plan
may:

"(bb)specify the
number of licences that may be issued in relation to an area or a fishery, as
the case requires, and prohibit or regulate the transfer of licences in respect
of a fishery;

(c) determine a quota or allowable catch for the fishery or
for any designated areas within the fishery for all fish or aquatic life within
the fishery or such areas, or for any designated species or type of fish or
aquatic life;

(d) authorize the Minister, by notice in the Gazette,
to allocate a quota or allowable catch to the person or persons the Minister
specifies, and to specify the method (if any) by which a quota or allowable
catch may be allocated;...

(f) establish a system for limiting access to the fishery to
persons who can satisfy the Director of their eligibility having regard to, but
not limited to, the following criteria or such criteria as may be specified in
the plan:

(i) present
participation in the fishery;(ii) historical fishing patterns and dependence
on the fishery; or(iii) the capability of fishing vessels being used, or
intended to be used, in the fishery, to operate in other fisheries;
..."

Although section 50 gives a right of review by the Local Court
of a decision of the Director regarding the issue, suspension, cancellation etc.
of a licence or permit, no such right is written into the Act regarding
allocation of fishing rights.

Security of rights

By section 9, registers shall be established for: "the grant,
renewal, variation of a provision, transfer (in whole or part), expiry,
suspension, or cancellation of rights, licences, registrations, permits, quotas,
or other authorities required or granted under this Act."

Transferability of rights

Licences may be temporarily or permanently transferred (secs.
12A and 12B), to Australian residents or Australian corporations only (sec.
12C), unless the regulations provide otherwise (sec. 47), or in the case of a
managed fishery, where the management plan prohibits or regulates the transfer
of licences issued in respect of the fishery (Schedule 2 (bb)).

Section 9 refers to the need for registration of "transfer" of
"quotas", but there is no other reference to transferability of quota. It may
however be implied that quota is transferable, subject to similar qualifications
as for licences.

Permanence of rights

Schedule 2 provides that a Management Plan may:

"(j) provide for the
establishment and administration of a scheme for the rationalisation of the
fishery and for those purposes may provide for -

(i) a
limitation or reduction in an equitable manner of the number of fishing units
licensed to operate in a fishery;

(ii) the surrender and purchase of licences relating to that
fishery on payment of agreed compensation;

(iii) the establishment of a trust account under the
Financial Administration and Audit Act;

(iv) the imposition of levies or other payments for the
purposes of funding any compensation to be paid; and

(v) the repayment of surplus amounts, after payment of any
outstanding amounts due, to persons who, on conclusion of a scheme, are holders
of licences in respect of fishing units to which the scheme relates."

The term "authority" is used in the Act, and is defined to
mean a licence, permit, quota or other authority in force under the Act (sec.
4). Quota is defined as follows:

"Meaning of
quota

9. "Quota" includes a restriction on activities by way of
fishing, including, for example, a restriction specified by reference to all or
any of the following:

(a) a
quantity of fish;(b) a percentage of a quantity of fish;(c) a period of
time;(d) an area;(e) the length or another reference to the size of a
boat;(f) a quantity or type of fishing apparatus or aquaculture
furniture;(g) an activity affecting a fish habitat, whether or not the
activity involves fishing;(h) anything else prescribed under a
regulation."

Establishment and allocation

Management plans may be made by the Chief Executive or by AFMA
where the appropriate Commonwealth/State arrangements are in place (sec. 3(1)).
Management plans are subordinate legislation (sec. 32(2)). However, section 42
provides that anything which may be declared, or about which provision may be
made, by a management plan may also be declared or made by a regulation.
Regulations prevail over management plans to the extent of any
inconsistency.

Declarations of matters such as closed seasons, closed areas,
etc, may be made in a management plan (sec. 37) or directly by a fisheries
agency (secs. 47 ff.). Declarations (other than emergency declarations) are
subordinate legislation (sec. 45).

Quotas may be prescribed by a management plans (sec. 38) or,
where there is no such provision in a management plan, by a declaration by the
Chief Executive or a Joint Authority (sec. 44). Otherwise, quotas may be
determined in the same way as licences or permits under the Act (sects. 49 ff).
This Division is couched in the general terms usually applied to the issue of
licences, and implies that quotas are no more permanent or
substantial.

The Act establishes a Fisheries Tribunal as an administrative
tribunal (sec. 85). A person whose interests are adversely affected by an order,
direction, requirement or other decision may appeal on the grounds that the
decision was contrary to the Act, manifestly unfair or will cause severe
personal hardship to the appellant (sec. 196). However, no appeal lies against a
decision about making a declaration or management plan.

Security of rights

A Register of authorities must be kept (sec. 73). The holder
of an authority may apply to have a specified persons interest noted in
the Register.

Transferability of rights

An "authority" (defined to include quota) may be transferred
on application, subject to any limitations in the regulations or the applicable
Management Plan (sec. 65).

Permanence of rights

Management plans may be amended or repealed according to their
terms. Any authorities issued under the Plan are terminated.

Authorities, including quotas, may be suspended or cancelled
for infringements of the law or where necessary or desirable for the best
management, use, development or protection of fisheries resources or fish
habitats. Any third-party interest may be disregarded for this purpose (sec.
67).

Sections 40 and 47 provide that no compensation is payable
per se if a management plan or fisheries declaration is made, amended or
repealed, or anything previously permitted is prohibited or regulated by the
plan or declaration. However, a regulation, management plan or declaration may
itself provide for the payment of compensation.

In this state, access to fisheries is limited by conditions
and limitations on licences only. This is enabled by a detailed
regulation-making section of the Fisheries Act 1982 (sec. 46). The
regulations may prescribe a "scheme of management" for a fishery, and licence
limitations, conditions and related matters are set out in the prescribed scheme
of management. Registration of fishing boats is also required (sec.
34).

Section 37 of the Act enable conditions to be placed on a
licence which are:

"(a) directed towards
conserving, enhancing or managing the living resources to which the fishery
relates; or

(b) related to any other matter prescribed by the scheme of
management for the fishery."

Conditions may prevent taking of certain species of fish, or
the use of types of gear.

Licences are only transferable if the scheme of management
under the Regulations permits it, the requirements of the scheme have been met
and the Directors consent is obtained (sec. 38).

Licences and boat registration endorsed on the licence run
together, and the suspension, cancellation or expiry of a licence effect the
same result upon the registration (sec. 39).

South Australia also manages two inshore fisheries by separate
Acts: the Fisheries (Gulf St. Vincent Prawn Fishery Rationalization) Act
1987; and the Fisheries (Southern Zone Rock Lobster Fishery Rationalization)
Act 1987. A feature of these two Acts is that they make specific provision
for payment of compensation for cancelled or surrendered licences under the
rationalization programme.

Tasmania

Regulatory framework

The Living Marine Resources Management Act 1995
replaces the former Fisheries Act 1959, which it repeals.

Establishment and allocation

In essence, the scheme provided under the Act involves the
issue of licences and the allocation of quota to licensees, in accordance with a
management plan drawn up for the fishery concerned.

Management plans may be drawn up in respect of any fishery
(sec. 32). More important, however, are the rule-making powers of the Minister
under Part 3 (sects. 33 ff.). Rules may be made in respect of virtually any
matter under the Act. A management plan consists of a set of rules relating to a
specified fishery (sec. 32). Rules may also be made for matters relating to
fishing licences, fishery capacity, entitlements under licences, prohibited and
permitted fishing, opening and closing of seasons and fisheries, vessels and
apparatus, fish and fishing, fish processing and handling and other
miscellaneous matters.

Rules prevail over inconsistent regulations (sec. 41) but a
provision of a management plan which is inconsistent with a rule prevails (sec.
42).

Management Plans, where made, also prevail over provisions of
the Act itself to the extent of any inconsistency (sec. 76). What follows must
be read in the light of this provision.

The Minister may also issue guidelines on any matter related
to licensing (sec. 75). These clearly do not have legislative status, but
attention must be paid to such guidelines in matters of issuing, varying etc.
licences.

There is no need to specify in Tasmanian legislation that
Management Plans are subsidiary legislation, as the set of rules which
constitute a Management Plan already have legislative status.

Absent a Management Plan, TAC and quota allocations are set by
the following procedure:

1. After consultation
with the relevant fishing body, the Minister declares that a species or class of
fish in a fishery, or a part of a fishery, is subject to quota management under
a management plan (sec. 93).

2. A total allowable catch is set (or varied) under the
management plan for the fishery, again after consultation with representatives
of persons considered likely to have an interest in the amount set (sec. 95).
The management plan specifies such matters as the period during which the TAC
may be taken, the process by which the TAC is to be allocated, etc (sec. 94).
The allocation may also take into account the need for a portion of TAC to be
allocated for recreational fishing (sec. 96).

3. The allocation process is actually performed through the
licensing process, under the general rule-making provisions (see above) found at
sections 34 and 35. Fishing licence rules may be made for criteria and
qualifications for granting licences, the number of licences, procedure for
determining issue, conditions, grounds for cancellation, suspension and refusal
to renew, etc. Fishery capacity rules may be made regarding the quantity of fish
that may be taken, the apparatus that may be used, the number of vessels and
persons in the fishery, and the method by which capacity is to be
determined.

The holder of a fishing licence may appeal to the Resource
Management Planning and Appeal Tribunal against an allocation decision on the
facts of the case; or on the grounds of natural justice (sec. 97).

The rock lobster fishery is governed directly by the Act in
Part 6A. A specific formula is set out to determine annual total allowable
catch, which is tailored towards the total closure of one fishery and the
regulation of another. Quota units are allocated to licence-holders on a catch
history basis. The allocation of rock lobster catch history units is not subject
to review or appeal (sec. 98F(5)). However, a licence-holder may request the
Secretary to review the determination of the value of the rock lobster catch
history (sec. 98K), and an appeal lies to the Appeal Tribunal against the result
of a review of the Secretary under section 98K on the facts of the case; or the
grounds of natural justice.

Transfer of rights

Unless a Management Plan specifies otherwise, transfer is not
an inherent right under the Act. The holder of a licence must apply to the
Minister to transfer the licence to another person; or to transfer a quota or
entitlement under the licence to another licensee (sec. 82(1)). The Minister may
refuse transfer if he is not satisfied as to the intended transferee, or other
factors affecting the desirability of transfer (sec. 82(2) and (3)). However,
the transferability and other such qualities of a fishing licence may be
specified in rules under section 34.

A holder of a licence must not allow another person to use the
licence by means of leasing, subleasing or lending, or in any other similar way,
without the Ministers approval, which may be withheld if the Minister is
not satisfied as to the desirability of such an action on specified grounds
(sec. 87).

Conditions may be imposed on licences, and the conditions
varied. The terms of the variation provision are drawn up so as to imply that
variation will favour the licensee.

Permanence of rights

Licences are issued for a fixed term (sec. 80), and are
renewable (sec. 81). Licences may be cancelled by a magistrate upon application
by the Secretary, on grounds of non-compliance and commission of fisheries
offences (sec. 90). The rules and management plans may make further provision
for the suspension and cancellation of licences.

Compensation is only payable for amendments or revocation of
management plans, or reductions or other limitations to fishing, if it is
provided for in the management plan for the fishery or otherwise under the Act
or its regulations (sec. 300). Otherwise, neither the Minister nor the Crown is
obliged to make any compensatory payment.

Other matters

The Tasmanian Act contains the following provision:

"SECT 9 Ownership
of living marine resources

(1) All living marine resources present in waters referred to
in section 5(1)(a), (b) and (c)[54] are owned
by the state.

(2) Any fish specifically provided for under a marine farming
licence are not owned by the State but are the property of the holder of that
licence."

The Fisheries Act 1995 replaces the former Fisheries
Act 1968. The 1995 Act came into force gradually and finally repealed its
predecessor in 1998. The 1995 Act provides a scheme of access licences,
management plans and detailed provisions for the allocation of individual quota
units to access licences under management plans.

Description of rights

Individual quota consists of a number of individual quota
units, as determined for a species of fish, allocated to a licence.

Establishment and allocation

Management Plans are notified by the Minister in the Gazette
(secs. 28 ff.). and 28(8) specifically provides that Guidelines included in a
management plan may include criteria designed to reduce the number of licences
or permits that are held in respect of a fishery.

Under section 64, the Governor-in-Council orders the TAC for a
fishery by period or zone, and issues a "quota order" to that effect. A formula
is determined for calculating the quantity of fish (by number, volume, weight or
value) in an individual quota unit within the TAC. The number of "individual
quota units" per licence-holder is then determined by period, fishery or zone,
and minima and maxima set, and gives the individual quota allocated to a
particular access licence. TACs and individual quotas may be applied over a
"quota period" specified in a quota order.

The allocation of individual quota units is also determined by
order of the Governor-in-Council. Orders may also specify the circumstances, if
any, in which the quotas can be exceeded or wholly or partially transferred or
carried over, set the minimum and maximum individual quota units that may be
acquired or held by each licence holder in a specified period or specified
fishery or zone, and determine a method or formula for varying individual quotas
or individual quota units over a period of time (sec. 64(1)).

The Secretary must give the holder of an access licence a
quota notice setting out details of the individual quota allocated to the
licence, as soon as possible after the quota allocation. Fresh quota notices
must be issued upon any variation to individual quota made by a quota order; or
where a licence is renewed or transferred, or individual quota units are
transferred (sec. 65).

A Commercial Fisheries Licensing Panel and a Licensing Appeals
Tribunal were originally established under the 1968 Act, and continued under the
1995 Act. The Panel considers applications regarding the issue, transfer or
renewal of fishery licences (sec. 134). The Tribunal hears appeals from persons
aggrieved by decisions of the Secretary in relation to the issue, transfer,
renewal, suspension, cancellation etc. of licences (secs. 136 and 137.

Security of rights

There is no register as such, but a person with a financial
interest in a licence may apply to the Secretary to have it registered (sec.
59).

Transferability of rights

Transferable licences, or registered financial interests in
licences, may be transferred with the consent of the Secretary and provided
statutory conditions are satisfied (sec. 56).

Section 65 permits the transfer of individual quota units
between holders of access licences for the same fishery, provided the number
transferred does not exceed the number permitted to be transferred or acquired
by the relevant quota order. The Secretarys approval must be sought, and
may be obtained if the transfer is consistent with "every quota order and
management plan that applies to the relevant fishery or zone". The Secretary
must refuse if the application for approval is inconsistent with any provision
of the Act. New quota notices must be issued for each access licence involved in
the transfer and acquisition.

Permanence of rights

The quota order establishing quotas for a fishery also
determines the circumstances, if any, in which quotas can be exceeded, or wholly
or partially transferred or carried over and varied: Section 64. Quota orders
may also reduce a TAC or the number or size of individual quota units before the
end of the TAC or quota period.

Access licences may be cancelled under licence reduction
arrangements for management purposes: Section 61. Where a licence is cancelled
for management purposes under section 61, compensation for consequential loss is
payable (secs. 62 and 63). Section 153B provides for payment of the value of
scallop-dredging licences cancelled by section 153A. The payment is an amount to
be determined by the Minister and Treasurer.

Other matters

The Act contains the following provision:

"10. Crown
property

(1) The Crown in right of Victoria owns all wild fish and
other fauna and flora found in Victorian waters.

(2) The property in any wild fish and other fauna and flora
found in Victorian waters passes-

(a) to the
holder of an access licence, a recreational fishery licence, an aquaculture
licence or a relevant licence or permit when taken from Victorian waters in
accordance with the licence or permit;

(b) to any other person when-

(i) lawfully
taken from Victorian waters; and(ii) where no licence or permit is required
under this Act for the purpose. "

The Fish Resources Management Act 1994 replaces the
Fisheries Act 1905, which it repeals. The 1994 Act also repeals the
Oyster Fisheries Act 1881 and the Whaling Act 1937.

Description of rights

"Entitlements" are conferred under licences or permits (termed
generally "authorizations").

Establishment and allocation

The 1994 Act provides a scheme of management plans, managed
fisheries, and various types of "authorizations" (defined generally as a licence
or permit: section 4) which may be issued. A two-tiered scheme of limitations is
provided: firstly, that the number of authorizations in a fishery may be limited
or restricted, and secondly, entitlements conferred by authorizations may be
limited.

Provisions for Fisheries Management are found at Part 6 of the
Act commencing at section 53. The Minister notifies the making of a management
plan (sec. 54), for a managed fishery or an interim managed fishery (sec. 56).
Management plans may be amended or revoked (sec. 54(2)). Before making a
management plan (except for an interim managed fishery) or amending or revoking
a management plan, the Minister is bound to consult with advisory committees and
other appropriate persons.

A Management Plan is subsidiary legislation for the purposes
of the Interpretation Act 1984 (sec. 55). Most of the provisions
regulating and restricting fishing in a managed fishery are written into the
management plan for the fishery (sec. 62).

When a management plan has been prepared for a managed fishery
or interim managed fishery, authorizations do not automatically entitle a person
to engage in fishing activity in that fishery (sec. 73). A further allocation
process is necessary. The management plan may specify the number and classes of
authorizations to be granted for the fishery, the conditions of eligibility for
authorizations, and the procedure for determining which applicants will be
granted authorizations if the number of eligible applicants exceeds the number
of authorizations to be granted (sec. 58).

No person is entitled to grant of an authorization "as of
right" (sec. 136). Moreover, the fact that a person engaged in fishing, or used
any boat for fishing, in a fishery before a management plan was determined for
the fishery does not confer any right to the grant of an authorization if a
management plan is determined for that fishery (sec. 70). Neither does grant of
an authorization entitle the holder to another grant if a subsequent management
plan is determined for the fishery (sec. 72).

The management plan may also specify the way entitlements
conferred by authorizations are fixed and allocated, and the extent of
entitlements expressed as units (sec. 60). Entitlements may be limited by
reference to quantity of fish taken, area, fishing period, gear used, types and
number of boats, vehicles and aircraft used or any other factor (sec.
66).

A management plan may provide for the making of objections to
the grant of authorizations, and the manner of consideration of the objections
(sec. 58(2)(e)).

Security of rights

A Register of authorizations is kept by an appointed Registrar
(secs. 124 and 125). A person holding a security interest in an authorization
may apply to have it registered (secs. 127 and 128) but registration does not
give the interest any further force than it already has (sec. 129).

Transferability of rights

Authorizations may be transferred upon application to the
Executive Director, provided he is satisfied as to the suitability of the
proposed transferee (sec. 140). Part of an entitlement under an authorization
may be similarly transferred, but only for a limited period (sec. 141). The
transfer of an authorization, or part of an entitlement under an authorization,
may be refused on grounds specified in a management plan (sec. 58(2)(k)).
Entitlements may be transferred temporarily in accordance with a management plan
(sec. 60(2)).

Persons who contravene offence provisions of a management plan
are liable to a court order for reduction of their entitlements. The forfeited
entitlements may be sold to persons eligible under the management plan (secs. 76
and 60(2)(i)).

A management plan may limit the number of persons who may
operate under an authorization, and specify their functions (sec.
60(o)).

Permanence of rights

Authorizations may be varied, and shall be varied where a
management plan specifies criteria for variation and those criteria have been
met (sec. 142).

Entitlements under an authorization may be varied, increased,
reduced, or suspended during a specified period, according to the relevant
management plan (sec. 60(2)).

If a management plan ceases to have effect, or expires in
respect of an interim managed fishery, the authorizations in respect of the
fishery cease to have effect (sec. 70).

The Fisheries Adjustment Schemes Act 1987 provided a
system of compensation when authorizations were cancelled or entitlements
reduced upon the reduction of a fishery under the 1905 Act. However, the 1994
Act provides its own adjustment process. Fisheries adjustment schemes may be
voluntary or compulsory, and a separate fund is established for each one, funded
in part at least by the levy of authorization fees. In a voluntary scheme,
agreed compensation is paid for the voluntary surrender of an entire
authorization or part of an entitlement under the authorization. Where it is not
possible or appropriate to establish a voluntary scheme, the Minister may
establish a compulsory scheme (sec. 14B). The authorizations or entitlements
that are to be reduced may be selected by any means, including ballot or lottery
(sec. 14E), and objections may be lodged before the reduction commences (sec.
14D).

Section 14G provides that any loss suffered as a result of
such cancellation is entitled to fair compensation assessed as market value of
the authorization or entitlement affected. If the person affected and the
Minister cannot reach agreement, the matter may be referred to a Fisheries
Adjustment Compensation Tribunal established under the Act (secs. 14J ff.).
Legal representation is possible before the Tribunal (sec. 14U), which may refer
a case stated on a question of law to the Supreme Court (sec. 14V). A decision
of the Tribunal is final section 14Z. The Minister may also purchase boats and
gear from affected persons (sec. 15A).

Summary of Australian Commonwealth and
State Legislation

Property Rights Features

The principal property features of limited access rights in
Australia are security, transferability and permanence. The various
jurisdictions achieve this in varying ways and to various degrees. Other
portions of the "bundle of rights" that go to make up the concept of "property",
such as rights of protection and exclusion and the right of management, remain
vested in the Crown through the governing statute.

Security

A measure of security is afforded by the establishment of a
register, in the Commonwealth and New South Wales, in relation to SFRs and
shares respectively, but these registers are primafacie evidence
only of matters contained in them. An indefeasible title is not created by
registration.

Transferability

Transferability is a key feature of the individual
transferable quota. Only in NSW are fishing shares readily transferable. The
right to transfer the Commonwealth statutory fishing right is qualified.
AFMAs permission must be obtained and this will be withheld if the
transfer is contrary to a management plan or a condition of the right.
Limitations are imposed on the transfer of IQUs in Victoria. They may be
transferred independently of licences, but only to other licence-holders in the
same fishery. A licence in South Australia may only be transferred if the scheme
of management under the Regulations permits it.

Permanence

The less susceptible fishing rights are to variation and
extinguishment, the more closely they resemble property. This is even more so
when the rights may be extinguished without compensation.

The Commonwealth SFRs may continue as options even when a
management plan is revoked. They only cease to have effect when the management
regime in respect of which they are issued ceases completely and is not
replaced. No form of compensation is available in this situation. SFRs are also
susceptible to change if a management plan is altered. Like other forms of
fishing authorisation, SFRs may be cancelled without compensation for breach of
condition, commission of fisheries offences, etc.

NSW shares have a finite life of 10 years, but are renewable.
When a share management fishery is abolished, all shares are cancelled, and if
the plan has been commenced, holders receive an agreed market value of the
shares in compensation, or replacement shares in a replacement fishery. Shares
may be surrendered by a shareholder exiting the industry, and may be sold at the
option of the shareholder. A court may order forfeiture of shares for commission
of certain offences.

In general in Victoria, where licences are cancelled for
management purposes, compensation is payable for consequential financial loss.
However, for one specific fishery closure, the Act only provided payment for the
value of the licence, in an amount determined by the Minister and
Treasurer.

Western Australian legislation provides that fair compensation
is payable where authorizations or part of the entitlements under authorizations
are voluntarily surrendered or otherwise cancelled for management
purposes.

Management plans for Northern Territory, Queensland and
Tasmanian fisheries may provide for payment of agreed compensation where fishery
access is reduced for management purposes, but this is not mandatory.

Property concepts

Some Australian states have paid specific attention to the
concepts of property and fishing rights in their fisheries legislation. The
explanatory note to the New South Wales Act acknowledges the common law right of
the public to fish in the sea and tidal waters. On the other hand, both the
Victorian and Tasmanian Acts provide for ownership of living marine resources
(Tasmania) or wild fish, flora and fauna (Victoria) in state waters by the
state. It seems that these states felt the need to assert this "ownership",
either as a claim to sovereignty, or at least as a claim to the right to
legislate in respect of the resource.

Proportionality

Shareholders in NSW share management fisheries are allocated a
share of total allowable catch in proportion to their shareholdings in the
fishery, although there is discretion to delay allocation and thereby not
restrict fishing effort of shareholders. The Individual Quotas of Victoria are
composed of individual quota units of a quantity of fish (by number, volume,
weight or value) determined under a quota order. The quota order may reduce a
TAC or the number or quantum of individual quota units according to a
predetermined formula.

Otherwise, proportionality is discretionary. SFRs under
Commonwealth legislation may or may not be proportionate, and are subject to
variation in their conditions. In the Northern Territory and Queensland,
subordinate legislation may or may not allocate catch proportionally. In
Tasmania, TAC may be allocated proportionally under a management plan, with a
right of appeal.

Conclusions

The legislative schemes of fisheries rights in Australia, in
both the Commonwealth and the states, range between an endorsed licence model
and one approaching, but not actually attaining, a full property rights concept.
In the main, Australian jurisdictions tend to treat limited-access rights as an
incident of a fishing licence. Only some Australian states, and the
Commonwealth, have developed the concept of fisheries quotas to the stage of
creating a property right.

The most complete of the latter is NSW, which employs the
somewhat unusual approach of allocating "shares" in a "share management
fishery". The shareholding must be held additionally to a licence, to enable
fishing in a share management fishery. The language used in the Act parallels
that of corporations legislation. This seems deliberately to be mandating a
property view of its fisheries "shares". But, despite the language used and the
provision of matters such as a share register, these shares cannot be fully
equated to the share in the incorporated company, which is a legally acceptable
form of property. The NSW fisheries share is dependent on the issue of a
licence. It has a limited life, and even during that lifespan, its continued
existence is dependent on the ongoing payment of fees and levies. It is subject
to proportionate variation of its worth. Dealings in it are ineffective unless
registered.

The Commonwealth establishes "statutory fishing rights",
described as any one of a long list of rights in relation to fishing: a right to
a quantity of fish or proportion of capacity, or qualified by area, time, gear
etc. A statutory fishing right is on a par with permits and licences, all termed
"fishing concessions". The scheme established by the Fisheries Management Act
1991, and particularly the language of section 21, are notable in that
considerable flexibility is possible in determining the exact nature of the SFR
under each management plan. By contrast, the fishing permit is clearly not
intended to operate as a long-term property right. Although used to a
considerable extent, it is seen as a transitional measure pending the
establishment of management plans for all Commonwealth-managed
fisheries.[57]

The Commonwealth Fisheries Management Act does not use
the word "property". Instead, a right-holder may deal with the right "as its
absolute owner". But this provision affords protection only to a bona
fide purchaser for value without notice of fraud. Trusts relating to SFRs
are not registrable and consequently not recognised.

Victoria and Queensland have less well-developed systems.
Victoria establishes "individual quota units" within the total allowable catch,
set by orders of the Governor-in-Council. IQUs are allocated in respect of
licences, but they may be dealt with separately from licences. The Queensland
Act goes so far as to provide a special definition of "quota", as including a
restriction on activities by way of fishing, which may be by reference to any
one of various factors. Quotas may be prescribed by management plans, but they
are determined in the same way as licences or permits. The language of the Act
is couched in the general terms usually applied to the issue of licences, and
implies that quotas are no more permanent or substantial.

The other states do not establish limited access rights as a
separate entity. They have left such matters as allocation, proportionality,
compensation for extinguishment etc. to the discretion of subordinate
legislation (usually the management plan). Quota allocations usually have no
more of a property nature than the licence they are endorsed on, which is liable
to cancellation, of limited duration, and usually not transferable (an exception
is the licence of South Australia, which is conditionally transferable). The
Northern Territory legislation is comparatively straightforward, and provides
for "quota or allowable catch", allocated by the Minister under a management
plan, as an incident of licence. Management plans may provide a licence buyback
programme when a reduction in fishing effort is planned. In Western Australia,
quota is no more than an entitlement, expressed as units, under licences and
permits. Both the number of licences or permits in a fishery and the quantity of
entitlement under the licence or permit may be limited. In Tasmania, a portion
of the total allowable catch may be allocated to a licence-holder. Quota is an
incident of licence rather than a separate concept. However, as Management Plans
prevail over the terms of the Act, the Plan for an individual fishery may
provide otherwise. And the law of South Australia goes no further than to limit
the number of licences that may be issued in a fishery.

In all Australian jurisdictions, essential "property" features
are retained by the state, whether explicitly or otherwise. Whether or not the
claims by Victoria and Tasmania to "ownership" of the resource are valid
property claims, or whether they are a restatement of sovereignty which gives
rise to the right to legislate regarding the resource, all limited fishing
rights in Australian legislation are creatures of that legislation, and owe
their existence to the will of the legislature which created them.

[34] Gissurarson (2000) 2.[35] Described in Gislason (2000a).
For further details see below.[36] For detailed outline of
the New Zealand legislation, see Nielander and Sullivan (2000a).[37] The version of the Fisheries
Act 1996 used here was obtained from the FAOLEX legal database. It is
however subject to frequent amendment and phased commencement.[38] Nielander and Sullivan
(2000b) p. 426.[39] See the unreported case
New Zealand Federation of Commercial Fishermen (Inc.) v. Minister of
Fisheries, CP 294/96, at first instance, appeal as CA82/97, CA 83/97,
CA 96/97, where both the High Court and the Court of Appeal declared quota
to be property, subject only to the overriding powers of the legislature.[40] For the purposes of this
paper, a reference to an Australian State includes a reference to the Northern
Territory unless otherwise indicated.[41] For detailed discussion
of the implications of the reception of the English common law in Australia,
see McFarlane (2000).[42] For a detailed breakdown
of the proportions of fisheries and licences held under ITQ regimes, see
McIlgorm & Tsamenyi (2000).[43] This discussion is based
on that of McFarlane (2000).[44] Section 5 of the Coastal
Waters (State Powers) Act 1980 (Cwth). The Coastal Waters (Northern
Territory Powers) Act 1980 (Cwth.) contains a similar provision.[45] Part 5 of the Fisheries
Management Act 1991, and particularly sections 71 and 72.[46] For more details see Palmer
(2000).[47] The consolidated version
of the New South Wales Fisheries Management Act used is current to
6 January 2000.[48] The abalone and lobster
fisheries are listed in Schedule 1.[49] Section 285 provides that
Notes appearing in the Act are explanatory only and do not form part of
the Act.[50] Section 38 reads:

"38 Right to fish in certain inland waters(1) A person may take fish from waters in a river or creek that
are not subject to tidal influence despite the fact that the bed of
those waters is not Crown land if, for the purpose of taking those fish,
the person is in a boat on those waters or is on the bed of the river
or creek."

[51] The version of the
Northern Territory Fisheries Act used was obtained from AUSTLII,
and is current to 1July 1996.[52] The version of the Queensland
Fisheries Act used was obtained from AUSTLII, and is current to
29May 1998.[53] The most recent amendment
in the AUSTLII version of the Fisheries Act 1982 was made in 1996,
and the most recent notation is of a commencement in 1997.[54] This refers to the standard
definition of state waters as those adjacent waters in the 3-mile coastal
zone.[55] The version of the Victorian
Fisheries Act used was obtained from AUSTLII, and is current to 1 April
1998.[56] The version of the Fish
Resources Management Act 1994 used contains amendments that were in
force as at 30 April 1998.[57] See the discussion in
Palmer, op. cit.